Feb 28, 2022 - Politics & Policy

Scoop: Biden to deny executive privilege for Flynn and Navarro

Flynn at a rally

Former Gen. Michael Flynn speaks during a protest of the outcome of the 2020 presidential election outside the Supreme Court on Dec. 12, 2020. Photo: Tasos Katopodis/Getty Images

President Biden will deny the shield of executive privilege for two top advisers to former President Donald Trump — his first national security adviser, Michael Flynn, and former trade adviser Peter Navarro — in the House select committee's Jan. 6 investigation, Axios has learned.

Why it matters: The move will likely force Flynn and Navarro to make a choice: cooperate with the select committee or face potential criminal referral from Congress to the Department of Justice.

  • Navarro vowed to take his case to the Supreme Court.
  • Flynn's attorney responded to the White House by insisting that his client has not asserted executive privilege or refused to appear for a deposition by the Jan. 6 committee.

Driving the news: Jonathan C. Su, a deputy White House counsel, sent letters on Monday to Flynn's attorney and directly to Navarro to inform them that Biden would not be invoking the privilege on their behalf.

  • "To the extent any privileges could apply to General Flynn's conversations with the former President or White House staff after the conclusion of his tenure, President Biden has determined that an assertion of executive privilege is not in the national interest, and therefore is not justified, with respect to particular subjects within the purview of the Select Committee," Su wrote to Flynn’s attorney, according to a copy of the letter obtained by Axios.
  • The letter from the White House to Navarro was similar to Flynn's, but unlike Flynn, Navarro still served the president at the time of the riot — potentially giving him a stronger argument that his conversations with Trump should be protected.
  • "These subjects include: events within the White House on or about January 6, 2021; attempts to use the Department of Justice to advance a false narrative that the 2020 election was tainted by widespread fraud; and other efforts to alter election results or obstruct the transfer of power," the counsel's office wrote to Navarro.

Flashback: In October, Biden waived any claims to executive privilege for Mark Meadows, Trump's chief of staff at the time of the insurrection, as well as Steven Bannon, his former top adviser.

  • Bannon was indicted by a federal grand jury on two counts of contempt of Congress for his failure to comply with a subpoena.

The other side: Navarro responded to the White House with a tart email:

  • "Mr. Biden is not the president I worked for. Donald Trump is," he wrote, cc'ing an Axios reporter along with several other national reporters.
  • "It is fanciful and dangerous to assert that a sitting president can revoke the Executive Privilege of his predecessor," Navarro emailed to the Biden White House. "See you at the Supreme Court."

Between the lines: Flynn has been asserting his right not to comply with all the committee's requests, but today his attorney said that he hasn't specifically invoked executive privilege.

  • In December, a federal judge in Florida ruled against Flynn's attempt to file a restraining order against the Jan. 6 committee from forcing him to testify.
  • Today in his response to Su, Flynn's attorney, David Warrington, claimed that "At no time has Executive Privilege been asserted by us or our client in connection with the Select Committee’s subpoena."
  • "At no time has our client refused to appear for a deposition," he added, in a letter to the White House obtained by Axios. "At no time has anyone requested agency counsel to be present at any deposition."

Go deeper: The Supreme Court rejected Trump's latest request to block the National Archives and Records Administration from releasing records to the panel.

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